Citation Nr: 0601534
Decision Date: 01/18/06 Archive Date: 01/31/06
DOCKET NO. 03-15 361 ) DATE
)
)
Received from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Entitlement to service connection for asthma, to include
as secondary to Agent Orange exposure.
2. Entitlement to service connection for alopecia areata, to
include as secondary to Agent Orange exposure.
3. Entitlement to service connection for skin disability
other than alopecia areata, to include as secondary to Agent
Orange exposure.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Siobhan Brogdon, Counsel
INTRODUCTION
The veteran served on active duty from November 1964 until
November 1968.
These matters comes before the Department of Veterans Affairs
(VA) Board of Veterans' Appeals (Board) from a January 2003
rating decision of the Regional Office (RO) in Philadelphia,
Pennsylvania, that denied service connection for asthma,
alopecia areata, claimed as hair loss, and other skin
disability, claimed as jungle rot/dermatophytosis and/or
rash, all to include as secondary to Agent Orange exposure.
The veteran appeared for a hearing in April 2004 before a
member of the Board sitting at the Cleveland, Ohio RO. The
transcript is of record. However, the member who presided at
the hearing left the Board prior to a final decision in the
appeal. In correspondence dated in October 2005, the veteran
was offered an opportunity to present testimony at another
Board hearing. He responded that he did not wish to be
scheduled for another hearing.
FINDINGS OF FACT
1. The veteran served in Vietnam from July 1966 to July
1967.
2. Asthma was first clinically demonstrated many years after
discharge from active duty and has not been related to
service or the veteran's in-service exposure to Agent Orange.
3. The veteran has scarring of the scalp as a result of a
cicatrical type of alopecia that as likely as not began
during military service.
4. Any skin disease other than alopecia areata is not
attributable to military service, including in-service
exposure to Agent Orange.
CONCLUSIONS OF LAW
1. The veteran does not have asthma that is the result of
disease or injury incurred in or aggravated by active
military service, to include exposure to Agent Orange.
38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2002 &
Supp. 2005); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2005).
2. The veteran likely has residual scarring of the scalp as
a result of disease incurred during active military service.
38 U.S.C.A. §§ 1110, 1111, 1116, 1153, 5103, 5103A, 5107
(West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.306, 3.307,
3.309 (2005).
3. The veteran does not have other skin disability, claimed
as jungle rot/dermatophytosis and/or rash that is the result
of disease or injury incurred in or aggravated by active
military service, to include Agent Orange exposure.
38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2002 &
Supp. 2005); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
At the outset, the Board notes that the Veterans Claims
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat.
2096 (2000), was promulgated in November 2000, and has
imposed new duties on VA to provide notice and assistance to
claimants in order to help them substantiate their claims.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002
& Supp. 2005). To implement the provisions of the law, VA
promulgated regulations codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a) (2005).
The Act and implementing regulations include an enhanced duty
on the part of VA to notify a claimant of the information and
evidence needed to substantiate a claim. 38 U.S.C.A. § 5103;
38 C.F.R. § 3.159(b) (2005). In addition, they define the
obligations of VA with respect to its duty to assist the
claimant in obtaining evidence. 38 U.S.C.A. § 5103A;
38 C.F.R. § 3.159(c) (2005).
Considering the record in light of the duties imposed by the
VCAA and its implementing regulations, the Board finds that
all notification and development action needed to fairly
adjudicate the claims has been accomplished. As evidenced by
the statement of the case, and the supplemental statement of
the case, the veteran and representative have been notified
of the laws and regulations governing entitlement to the
benefits sought, and informed of the ways in which the
current evidence has failed to substantiate the claims.
These discussions also served to inform him of the evidence
needed to substantiate the claims.
The Board also finds that the statutory and regulatory
requirement that VA notify a claimant of what evidence, if
any, will be obtained by the claimant and which evidence, if
any, will be obtained by VA, has been met. 38 U.S.C.A.
§ 5103(a); see Quartuccio v. Principi, 16 Vet. App. 183
(2002) (addressing the duties imposed by 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159). In letters to the veteran
dated in November 2002 and April 2005, the RO informed the
appellant of what the evidence had to show to substantiate
the claims for service connection, what medical and other
evidence the RO needed from him, what information or evidence
he could provide in support of the claims, and what evidence
VA would try to obtain on his behalf. The letters also
advised him to submit relevant evidence or information in his
possession. 38 C.F.R. § 3.159(b).
The United States Court of Appeals for Veterans Claims
(Court) has held that notice required by 38 U.S.C.A.
§ 5103(a), and 38 C.F.R. § 3.159(b), should generally be
provided prior to the initial adverse decision on the claim.
Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). The
Court went on to say, however, that its decision was not
meant to invalidate any existing decision made prior to such
notice, and, indeed, that VA could satisfy VCAA notice
requirements by ensuring that the proper notice was
ultimately provided after the initial adverse decision on the
claim. Id, at 120, 122-4. Although some notice required by
the VCAA was not provided until after the RO initially
adjudicated the appellant's claims, "the appellant [was]
provided the content-complying notice to which he [was]
entitled." Pelegrini v. Principi, 18 Vet. App. 112, 122
(2004). Consequently, the Board does not find that any late
notice under the VCAA requires remand to the RO. Nothing
about the evidence or the appellant's response to the RO's
notification suggests that the case must be re-adjudicated ab
initio to satisfy the requirements of the VCAA.
The Board finds that VA has made the required efforts to
assist the veteran in obtaining the evidence necessary to
substantiate his claims. He has had the benefit of VA
examinations and a personal hearing, and extensive VA
clinical records have been received and associated with the
claims folder. Under the circumstances, the Board finds that
further assistance is not required. See 38 U.S.C.A.
§ 5103A(a)(2).
Turning to the merits of the veteran's claims, service
connection may be granted for disability resulting from
disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R.
§ 3.303. To establish service connection, there must be
evidence of an etiological relationship between a current
disability and active military service. See Cuevas v.
Principi, 3 Vet. App. 542, 548 (1992), citing Rabideau v.
Derwinski, 2 Vet. App. 141, 143 (1992).
For the showing of chronic disease in service there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic." Continuity of symptomatology is required where
the condition noted during service is not, in fact, shown to
be chronic or where the diagnosis of chronicity may
legitimately be questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303.
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service or aggravated by service. 38 C.F.R.
§§ 3.303, 3.306 (2005).
If a veteran was exposed to a herbicide agent (to include
Agent Orange) during active military, naval, or air service,
the following diseases shall be service-connected if the
requirements of 38 C.F.R. § 3.307(a)(6) (2005) are met, even
though there is no record of such disease during service,
provided further that the rebuttable presumption provisions
of 38 C.F.R. § 3.307(d) are also satisfied: chloracne or
other acneform diseases consistent with chloracne, Type 2
diabetes (also known as Type II diabetes mellitus or adult-
onset diabetes), Hodgkin's disease, multiple myeloma, non-
Hodgkin's lymphoma, acute and subacute peripheral neuropathy,
porphyria cutanea tarda, prostate cancer, respiratory cancers
(cancer of the lung, bronchus, larynx, or trachea) and soft-
tissue sarcomas (other than osteosarcoma, chondrosarcoma,
Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e)
(2005).
The diseases listed at § 3.309(e) shall have become manifest
to a degree of 10 percent or more at any time after service,
except that chloracne or other acneform disease consistent
with porphyria cutanea tarda, and acute and subacute
peripheral neuropathy shall have become manifest to a degree
of 10 percent or more within a year after the last date on
which the veteran was exposed to an herbicide agent during
active military, naval or air service. 38 C.F.R.
§ 3.307(a)(6)(ii).
On December 27, 2001, the President signed into law the
Veterans Education and Benefits Expansion Act of 2001, which,
among other things, provides a presumption of exposure to
herbicides for all veterans who served in Vietnam during the
Vietnam Era whether diagnosed with one of the identified
diseases or not.
The veteran contends that he was exposed to Agent Orange as
the result of service in Vietnam, and now has several
disabilities, including asthma, alopecia areata and jungle
rot/dermatophytosis and skin rash as a result thereof for
which service connection should be granted. Although the
veteran has made arguments limited to whether the claimed
disabilities are due to Agent Orange exposure, the RO has
considered direct incurrence as well. The Board will do
likewise.
The service medical records show that the veteran sought
treatment in August 1965 for complaints of hair loss on
isolated areas of the head. It was reported that he had been
aware of this problem for years and had been treated in
civilian life with a lotion with some effectiveness. It was
reported that a KOH (potassium oxide) stain of scraping was
negative. Physical examination disclosed a patchy loss of
hair of the occiput with atrophy and scarring. It was noted
that he gave a history of tinea capitis as a child. The
examiner related that he had a cicatrical type of alopecia.
In October 1968, the veteran was seen for complaints of a
cold which he stated was worse with physical training in the
afternoon. No diagnosis was recorded. Upon examination in
October 1968 for separation from service, the veteran's skin
was evaluated as having a birthmark of the right thigh and a
vertical scar on the right thigh. His respiratory status was
evaluated as normal.
A claim for service connection for the issues currently on
appeal was received in October 2001.
An undated statement from J. Politi, M.D., was received
relating that it was as likely as not that the veteran's
asthma was related to exposure to Agent Orange. In a memo
dated in May 2001, Dr. Politi stated that the veteran had
been his patient since March 1995 and that asthma was
diagnosed at that time. Subsequently received were clinical
records from Dr. Politi showing that the appellant received
regular follow-up for respiratory symptoms for which he was
placed on medication. A chest X-ray obtained in December
1995 was interpreted as showing no acute pathology. Records
dated in February 2001 from S. K. Mishr were received showing
that the veteran had conditions that included fungus and
asthma.
The veteran underwent a VA Agent Orange protocol examination
in February 2002 and noted complaints of asthma, jungle rot
and loss of body hair. The skin was observed to be normal.
Following examination, diagnoses included asthma. VA
outpatient treatment records dated in March 2002 reflect that
the veteran was treated for complaints of mild intermittent
wheezing
A VA respiratory examination was conducted in September 2002.
The examiner noted that the claims folder was reviewed. The
veteran stated that he had developed a cough while in
Vietnam, but had not been seen for any respiratory problems.
He said that he continued to have a cough and shortness of
breath after leaving the military and that asthma was
diagnosed by his private physician in 1995 for which he was
placed on an oral inhaler. The veteran related that he
currently had an occasional cough that was not productive,
with shortness of breath. He said that he had to go on
antibiotic therapy approximately two times a year for
respiratory infections. A physical examination and
diagnostic tests were performed followed by a diagnosis of
asthma. The examiner opined that it was more likely than not
that the veteran's asthma was not related to military
service.
The veteran was afforded a VA skin disease examination in
September 2002 and stated that he developed a rash on his
feet and loss of hair while serving in Vietnam. He related
that he received treatment in service and continued to obtain
follow-up for the rash on his feet after leaving the
military. He said that he was currently followed in the VA
podiatry clinic and had been placed on medication for
continuing rash with itching. The examiner noted that the
claims folder was reviewed.
On physical examination of the feet, there was some scaliness
along the lateral and medial aspects of both feet. Some
scaliness was present between the digits of the toes with
slight erythema. The toenails were thickened with yellowing
discoloration. It was noted that hair distribution was not
normal but that hair was present. Hair was observed on the
lower extremities. There was no ulceration, exfoliation or
crusting and no associated systemic or nervous
manifestations. A diagnosis of jungle rot/dermatophytosis
was rendered. Photographs of the feet were obtained. The
examiner opined that it was more likely than not that the
conditions were related to the appellant's time in the
military.
The veteran presented testimony upon personal hearing on
appeal in April 2004 to the effect that he developed asthma
in 1968 and that it worsened over the years after service.
He stated that he had an asthma attack in 1996 and nearly
died. He testified that he did not have any loss of body
hair at service entrance examination, but developed it after
being exposed to Agent Orange in Vietnam. He appeared to
state that he had some scalp hair loss diagnosed as alopecia
areata prior to service that was aggravated by exposure to
Agent Orange, and that this began to occur a number of years
after discharge from active duty. The veteran also stated
that he developed jungle rot of both feet while in Vietnam.
VA outpatient records dated between 2002 and 2005 were
received showing continuing treatment for conditions that
included bilateral peripheral neuropathy, xerosis,
onychomycosis, asthma, tinea pedis, nail fungus, pruritus,
and dry skin, etc.
A statement dated in July 2005 was received from J. Politi,
M.D., who noted that the veteran had been a patient since
1995 and received two injections every two weeks for dust-
mold-mite and grass-ragweed-tree and plantain allergens. It
was noted that he had also been prescribed allergy
medications and an inhaler.
Pursuant to Board remand, the veteran was afforded a VA
pulmonary examination in July 2005. The examiner noted that
the claims folder was reviewed and that there were no
military records indicating a diagnosis of asthma while on
active duty. It was reported that the veteran had presented
a history of asthma with coughing and shortness of breath
dating back to Vietnam. He stated that his symptoms had
gotten progressively worse. A physical examination and
diagnostic studies, including pulmonary function studies,
were performed. Following examination, the examiner stated
that the clinical symptoms as reported, persistent elevation
of eosinophil count and pulmonary function studies obtained
from 2002 were not inconsistent with a diagnosis of asthma.
It was noted that current testing was not interpreted as the
appellant was not able to perform them satisfactorily. The
examiner opined that even if the veteran had asthma, there
was no data in the claims folder that suggested that his
condition manifested while on active duty. It was also added
that there was no current data linking asthma to exposure to
Agent Orange, and that it was therefore not as likely as not
that current complaints of asthma were related to service or
to Agent Orange exposure.
The veteran was afforded a VA skin examination in July 2005
and was reported to have stated that alopecia began before
military service and that he had lost some hair on his scalp
prior to joining the military. He related that he later lost
some of his body hair. He stated that jungle rot started
during his military service. Examination of the scalp
disclosed loss of follicular markings and patches of
hypopigmentation at the vertex. The lower extremities were
clear with a few patches of no hair scattered on the legs.
The feet were observed to be clear and the nails were normal.
Assessments of scarring alopecia of the scalp - no active
disease today, and tinea pedis - no active disease today,
were rendered. An addendum to the examination report
indicates that there was no relationship found between the
veteran's remote inactive alopecia areata and exposure to
Agent Orange. The examiner also added that it was not as
likely as not that the pre-service alopecia underwent a
chronic increase beyond natural progression during service or
following service as a result of Agent Orange exposure. The
examiner stated that alopecia is not exacerbated by exposure
to Agent Orange, nor was caused by it.
1. Service connection for asthma
The service medical records reflect no symptomatology
diagnosed as asthma in service or for many years thereafter.
Thus, even if the appellant did have self-reported symptoms
of asthma in service, as contended, continuity of
symptomatology is not established. See 38 C.F.R. § 3.303.
Evidence of chronic respiratory disability was first
clinically indicated in the mid-1990s, many years after
discharge from active duty, and may not be directly
attributed to service on this basis.
The veteran is shown to have served in the Republic of
Vietnam during the Vietnam era and is entitled to a
presumption of exposure to herbicide agents, whether or not
he has a disease listed at 38 C.F.R. § 3.309(e). See the
Veterans Education and Benefits Expansion Act of 2001, Pub.
L. No. 107-103, 115 Stat. 976 (2001). However, the condition
for which service connection is sought in this instance-
asthma--is not one of the diseases listed under 38 C.F.R.
§ 3.309(e) for which service connection may be presumed as a
consequence of exposure to Agent Orange under 38 U.S.C.A.
§ 1116 and 38 C.F.R. §§ 3.307 and 3.309. Therefore, service
connection for the asthma cannot be granted on a presumptive
basis.
Nonetheless, service connection for asthma could possibly be
established if the evidence otherwise showed that it was the
result of exposure to Agent Orange. See Combee v. Brown, 34
F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A.
§§ 1113(b), 1116 (West 2002 & Supp. 2005); 38 C.F.R. § 3.303
(2005).
The veteran's physician, Dr. Politi, did provide an opinion
to the effect that it was as likely as not that there was a
relationship between exposure to Agent Orange and asthma.
However, it does not appear that he reviewed the veteran's
prior clinical records, nor did he provide any rationale for
that opinion. The record reflects that Dr. Politi's
conclusion was countered by that of the VA examiners in
September 2002 and July 2005; the latter examiners noting
that the record disclosed no evidence of asthma in service,
and stating that there was currently no clinical data linking
asthma to Agent Orange exposure. The VA examiner noted that
the clinical record was reviewed and fully considered. The
VA practitioners, unlike Dr. Politi, provided a rationale for
the conclusions reached. Consequently, greater weight is
given to the conclusion reached by VA examiners.
The Board thus finds that the VA examiners' opinions of
September 2002 and July 2005 have more probative weight than
that of Dr. Politi. The Board may appropriately favor the
opinion of one competent medical authority over another. See
Owens v. Brown, 7 Vet. App. 429, 433 (1995). Moreover, the
Court has expressly declined to adopt a "treating physician
rule" which would afford greater weight to the opinion of a
veteran's treating physician over the opinion of a VA or
other physician. See Guerrieri v. Brown, 4 Vet. App. at 471-
73. The only other evidence in support of the claim is the
veteran's own statements to the effect that asthma is related
to service. However, as a layperson, the appellant is not
competent to provide a probative opinion on a medical matter,
such as the etiology of his asthma. See Bostain v. West, 11
Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2
Vet. App. 492 (1992); see also Routen v. Brown, 10 Vet. App.
183, 186 (1997) ("a layperson is generally not capable of
opining on matters requiring medical knowledge").
The Board finds that, because the more probative evidence of
record is against a link between military service and asthma,
service connection for such must thus be denied.
2. Service connection for alopecia areata
A veteran is presumed in sound condition except for defects
noted when examined and accepted for service. Clear and
unmistakable evidence that the disability existed prior to
service and was not aggravated by service will rebut the
presumption of soundness. 38 U.S.C.A. § 1111; VAOPGCPREC 3-
2003.
The service medical records show that the veteran was seen in
August 1965, prior to service in Vietnam, for complaints of
hair loss on isolated areas of the head. He indicated that
the condition pre-existed service and that he had sought
treatment for it by a civilian doctor. It is shown that
appellant has consistently maintained in the record that
alopecia and/or hair loss of the scalp pre-existed service.
Nevertheless, the service entry examination shows that his
head, scalp and skin were normal. He is therefore entitled
to the presumption of soundness.
The Board does not find that veteran's statements, made in
service and since, as amounting to clear and unmistakable
evidence that such a diagnosed condition pre-existed his
military service. He is competent to say that he experienced
symptoms related to his scalp, but not that it was diagnosed
as a certain disease or that it was a chronic process.
Consequently, despite the evidence that tends to show pre-
existence of a cicatrical type alopecia, the Board finds that
clear and unmistakable evidence showing pre-existence is not
of record.
Given the presumption of soundness, the Board concludes that
it is likely that the scarring noted in July 2005 was a
residual of alopecia that was first clearly shown as a
disease process during military service. The in-service
examiner said that the veteran's problem was a cicatrical
type alopecia, strongly suggesting that the long-term
residual of the alopecia would be scarring. Scarring of the
scalp related to alopecia was noted in July 2005 by the VA
examiner, although an active disease process was not found.
Therefore, given the first clinical observations in service,
which suggested that a chronic problem either had occurred or
would later occur, namely cicatrix formation, and because
such scarring has currently been shown, the Board finds that
a grant of service connection is warranted by resolving
reasonable doubt in the veteran's favor.
3. Service connection for other skin disability
Other skin disabilities for which the veteran is seeking
service connection in this instance are not any of the
diseases listed under 38 C.F.R. § 3.309(e) for which service
connection may be presumed as a consequence of exposure to
Agent Orange under 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307
and 3.309. Therefore, service connection for skin disability
claimed as jungle rot/dermatophytosis and/or rash cannot be
established on a presumptive basis.
The service medical records do not show that the veteran
sought any treatment for skin problems in service, other than
alopecia as discussed previously. The post-service record is
silent for other skin problems until VA outpatient records
beginning in 2001 begin to show treatment for various skin
conditions including nail fungus, xerosis, onychomycosis,
tinea pedis, pruritus, and dry skin, etc. The Board observes
that evidence of skin disorders noted above was demonstrated
many years after discharge from active duty. It is noted
that that diagnoses of jungle rot and dermatophytosis were
provided on VA examination in September 2002, and that the
examiner opined that it was more likely than not that they
were related to the appellant's time in service.
Nevertheless, on more recent VA examination in July 2005, no
pathology was found. The veteran's feet and toenails were
reported to be normal. The Board therefore observes that
while there is medical opinion of record that the veteran has
skin disability of the feet related to service, there is also
more recent evidence that he has no such pathology. Given
what appears to be a transitory problem, especially in light
of the many years that have passed since military service
without complaint or diagnosis of skin problems, the Board
finds that a chronic skin problem attributable to military
service is not shown. The absence of any discernible
disability at the time he left military service and at the
most recent VA examination is evidence that the veteran does
not have a chronic disability that can be traced to his
military service. Under the circumstances, service
connection may not be granted.
In reaching the above conclusions, the Board has considered
the benefit-of-the-doubt doctrine. However, as the
preponderance of the evidence is against the claims of
service connection for asthma and skin disability other than
alopecia, the doctrine is not for application with respect to
these two issues. See 38 U.S.C.A. § 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49, 55-57 (1990).
ORDER
Service connection for asthma is denied.
Service connection for scarring alopecia of the scalp is
granted.
Service connection for other skin disability is denied.
________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs